Judgment of the General Court (Second Chamber) of 13 May 2020

EU trade markAppeals procedureAction before the EU judicatureJurisdiction of the General CourtRe-evaluation of the facts in the light of evidence produced for the first time before itPrecluded

(European Parliament and Council Regulation 2017/1001, Art. 72)

(see para. 20)

EU trade markDefinition and acquisition of the EU trade markAbsolute grounds for refusalMarks devoid of distinctive characterDefinition

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b))

(see para. 28)

EU trade markDefinition and acquisition of the EU trade markAbsolute grounds for refusalMarks devoid of distinctive characterAssessment of distinctive character

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b))

(see para. 29)

EU trade markDefinition and acquisition of the EU trade markAbsolute grounds for refusalMarks devoid of distinctive characterMarks consisting of advertising slogansDistinctive characterApplication of specific criteria for assessmentNot permissible

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b))

(see paras 30, 31)

EU trade markDefinition and acquisition of the EU trade markAbsolute grounds for refusalMarks devoid of distinctive characterMarks consisting of advertising slogansDistinctive characterCriteria for assessment

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b))

(see paras 32-35)

EU trade markDefinition and acquisition of the EU trade markAbsolute grounds for refusalMarks devoid of distinctive characterWord mark XOXO

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b))

(see paras 37, 38, 42-51)

EU trade markDecisions of the OfficeLegalityExamination by the EU judicatureCriteria

(European Parliament and Council Regulation 2017/1001)

(see para. 56, 60)

EU trade markDecisions of the OfficePrinciple of equal treatmentPrinciple of sound administrationEUIPO's previous decision-making practicePrinciple of legalityNeed for a strict and complete examination in each particular case

(European Parliament and Council Regulation 2017/1001)

(see paras 57-59)

EU trade markDefinition and acquisition of the EU trade markAssessment of the registrability of a signEU rules only taken into accountEarlier registration of the mark in certain Member States or third countriesDecisions not binding EU bodies

(European Parliament and Council Regulation 2017/1001)

(see para. 62)

EU trade markDefinition and acquisition of the EU trade markAbsolute grounds for refusalMarks devoid of distinctive characterExceptionAcquisition through useExamination by the OfficeLimitation to the facts and evidence raised by the trade mark applicant

(European Parliament and Council Regulation 2017/1001, Art. 7(3))

(see para. 69)

EU trade markAppeals procedureAction before the EU judicatureJurisdiction of the General CourtReview of the lawfulness of decisions of the Boards of AppealAnnulment or variation for reasons appearing after judgment was deliveredPrecluded

(European Parliament and Council Regulation 2017/1001, Arts 72(2) and 95)

(see para. 78)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 11 April 2019 (Case R 1413/2018-1), concerning an application for registration of the word sign XOXO as an EU trade mark.

Operative part

The Court:

Dismisses the action;

Orders Global Brand Holdings, LLC to pay the costs.